49 Soc - Sec.rep - Ser. 3, Unempl - Ins.rep. (CCH) P 14795b James E. Pass v. Shirley S. Chater, Commissioner of Social Security, 65 F.3d 1200, 4th Cir. (1995)
49 Soc - Sec.rep - Ser. 3, Unempl - Ins.rep. (CCH) P 14795b James E. Pass v. Shirley S. Chater, Commissioner of Social Security, 65 F.3d 1200, 4th Cir. (1995)
49 Soc - Sec.rep - Ser. 3, Unempl - Ins.rep. (CCH) P 14795b James E. Pass v. Shirley S. Chater, Commissioner of Social Security, 65 F.3d 1200, 4th Cir. (1995)
3d 1200
The appellant, James Pass, was denied Supplemental Security Income disability
benefits by the Secretary of the Department of Health and Human Services,1
based on a finding that he was capable of fulfilling the requirements of his
former job position. On review of the Secretary's final decision, the district
court affirmed the denial of benefits. Pass now appeals to this Court, arguing
that because the particular job position that he previously held no longer exists,
his claim for benefits should not have been denied based upon his ability to
perform that work. For the reasons stated below, we affirm.
I.
2
The ALJ made detailed findings concerning Pass's claimed disability. The ALJ
first acknowledged that Pass had not engaged in substantial gainful activity
since June 10, 1990, and that he suffered from severe hypertension and arthritis.
The ALJ discounted Pass's testimony concerning his other alleged ailments.
After finding that Pass's hypertension and arthritis did not constitute or equal a
listed impairment under the Social Security regulations, the ALJ proceeded to
examine Pass's residual functional capacity and his employment history. Pass
worked for a tobacco company on a seasonal basis in the early 1980s, and also
farmed during that time. In 1989 and 1990, he grew tobacco as a sharecropper
and maintained a vegetable garden. For five months in 1987, Pass worked full
time as a gate guard at a construction site. His guard duties involved sitting on a
chair in a booth and monitoring people coming through the gate; there was no
strenuous activity involved in the work. It took him approximately one week to
learn how to perform the job. Pass's employment as a gate guard ended after
five months, when the construction site at which he was working was
completed.
The Appeals Council denied Pass's request for review, establishing the ALJ's
decision as the final decision of the Secretary. Pass then filed a complaint in the
United States District Court for the Middle District of North Carolina pursuant
to 42 U.S.C. Sec. 405(g), seeking judicial review of the Secretary's final
decision. The magistrate judge to whom the case was referred issued a report
recommending that the Secretary's decision denying benefits be affirmed. After
Pass filed objections, the district court reviewed de novo the magistrate judge's
determination. On May 17, 1994, the district court adopted the magistrate
judge's recommendation and affirmed the decision of the Secretary. Pass
appeals from the district court's decision.
II.
6
The Social Security Act, 42 U.S.C. Sec. 301 et seq., provides the following
definition of "disability":
8
[I]nability
to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in death
or which has lasted or can be expected to last for a continuous period of not less than
12 months....
9
10
(b) If you are working. If you are working and the work you are doing is
substantial gainful activity, we will find that you are not disabled regardless of
your medical condition or your age, education, and work experience.
11
(c) You must have a severe impairment. If you do not have any impairment or
combination of impairments which significantly limits your physical or mental
ability to do basic work activities, we will find that you do not have a severe
impairment and are, therefore, not disabled. We will not consider your age,
education, and work experience.
12
(e) Your impairment(s) must prevent you from doing past relevant work. If we
cannot make a decision based on your current work activity or on medical facts
alone, and you have a severe impairment(s), we then review your residual
functional capacity and the physical and mental demands of the work you have
done in the past. If you can still do this kind of work, we will find that you are
not disabled.
14 Your impairment(s) must prevent you from doing other work. (1) If you cannot
(f)
do any work you have done in the past because you have a severe impairment(s), we
will consider your residual functional capacity and your age, education, and past
work experience to see if you can do other work. If you cannot, we will find you
disabled.
15
20 C.F.R. Sec. 416.920. The applicant bears the burden of production and proof
during the first four steps of the inquiry. Hunter, 993 F.2d at 35. If he or she is
able to carry this burden through the fourth step, the burden shifts to the
Secretary in the fifth step to show that other work is available in the national
economy which the claimant could perform. Id.
16
The instant case involves step four in the sequential evaluation, 20 C.F.R. Sec.
416.920(e), which addresses past relevant work. After considering the evidence
of Pass's physical and mental condition, the ALJ determined that Pass
"retain[ed] the residual functional capacity for sedentary work activity with
limitations that he not be exposed to unprotected heights or dangerous
machinery." The ALJ then examined Pass's employment history and concluded
that the gate guard position previously held by Pass was sedentary, unskilled
work which did not require the performance of activities that violated the
foregoing limitations. The ALJ thus denied Pass's claim of disability at the
fourth step of the sequential evaluation, based on the finding that Pass remained
able to perform his past relevant work. Pass contends on appeal, however, that
he is not able to perform his past work because the particular gate guard
position that he formerly held no longer exists, and because he is unable to
perform the job of gate guard as it is defined in the national economy. He
argues that once he demonstrated that his past job no longer existed, the ALJ
should have proceeded to the fifth step in the sequential evaluation, at which
point the Secretary would have had the burden of proving the availability of
other work in the national economy which Pass would be capable of
performing. We must decide whether the nonexistence of Pass's former
position as a gate guard has any relevance to the determination at step four of
18
We will first compare your residual functional capacity with the physical and
mental demands of the kind of work you have done in the past. If you still have
the residual functional capacity to do your past relevant work, we will find that
you can still do your past work, and we will determine that you are not
disabled, without considering your vocational factors of age, education, and
work experience.
19
20
Notably absent from both 20 C.F.R. Sec. 416.960(b) and 20 C.F.R. Sec.
416.920(e) is any mention of the continued existence of past work or the ability
of the claimant to obtain such work. By referring to the claimant's ability to
perform a "kind" of work, Sec. 416.920(e) concentrates on the claimant's
capacity to perform a type of activity rather than his ability to return to a
specific job or to find one exactly like it. Past relevant work in the regulatory
scheme is a gauge by which to measure the physical and mental capabilities of
an individual and the activities that he or she is able to perform, rather than a
means by which to assure that the claimant can actually find employment. In
addition, in Social Security Ruling ("SSR") 82-61,3 entitled "Past Relevant
Work--The Particular Job or the Occupation as Generally Performed," the
Social Security Administration has stated:
23
The fact that the regulations are concerned with the physical and mental
abilities of a claimant, rather than the existence of jobs, at step four of the
sequential evaluation becomes even clearer when one compares step four with
step five. If a claimant shows that he or she cannot perform past work at step
four, the ALJ must proceed to examine at step five whether the claimant is able
to perform other work. Only at step five does the existence of job opportunities
become relevant:An individual shall be determined to be under a disability only
if his physical or mental impairment or impairments are of such severity that he
is not only unable to do his previous work but cannot, considering his age,
education, and work experience, engage in any other kind of substantial gainful
work which exists in the national economy, regardless of whether such work
exists in the immediate area in which he lives, or whether a specific job vacancy
exists for him, or whether he would be hired if he applied for work. For
purposes of the preceding sentence (with respect to any individual), "work
which exists in the national economy" means work which exists in significant
numbers either in the region where such individual lives or in several regions of
the country.
24
25
SSR 82-40, which outlines the approach of the Social Security Administration
to the issue of past relevant work performed in a foreign country, provides
further support for the conclusion that the existence of jobs is not a relevant
consideration at step four of the sequential evaluation. SSR 82-40 contains the
Administration's response to the argument that foreign work should not be
considered past relevant work unless a claimant could find substantially similar
work in the United States. The Ruling states:
Such a view .... interposes a requirement that similar work must be found in the U.S.
26
31
Pass directs our attention to Kolman v. Sullivan, 925 F.2d 212 (7th Cir.1991), a
case decided by the Seventh Circuit, as support for his position that the
nonexistence of his past relevant work should prevent the Secretary from
finding that he is not disabled based on his ability to perform that work. In
Kolman, the Seventh Circuit vacated a finding that a claimant was not disabled
because he had the ability to return to past relevant work as a non-intervening
security guard, a position that he had held as part of a government training
program. The court found that, because the security guard position was a
"makework training job," or a "temporary job designed to equip the employee
for real work--not a career that a person disabled from pursuing a real career
can be expected to pursue," id. at 213, it did not constitute relevant past work.
See also DeRienzis v. Heckler, 748 F.2d 352 (2d Cir.1984) (holding that
further inquiry by the ALJ was needed into the issue of whether a position in a
government training program could be considered substantial gainful activity).
The court further stated that even if the training job could be considered past
employment, the Secretary could not deny benefits on the basis of the
claimant's ability to perform that particular job, because the government
training program no longer existed. The Seventh Circuit decided that if the
assumption at step four that past work continues to exist is "dramatically
falsified in a particular case," id., the ALJ should proceed to step five in the
evaluation process.
32
The instant case cannot, however, be decided on the basis of Kolman. Pass
acknowledges that his job as a gate guard was not makework and was not part
of a training program that is now defunct. Further, we cannot say that the
assumption that Pass's job still exists at the level at which he would be able to
perform it is "dramatically falsified." Pass has simply asserted that the
particular job that he held no longer exists, because construction was completed
in the location at which he worked. We need not decide whether it would be
necessary to proceed to step five in the sequential evaluation if Pass's were the
case of a training job which has been eliminated; it is simply not such a case.6
33
34
performed in the national economy. Pass points out that the job of gate guard is
classified in the Dictionary of Occupational Titles ("DOT") as a job involving a
light level of exertion, which is beyond Pass's capacity. The job of security
guard is identified likewise, and both the gate guard and the security guard
positions require training periods of between one and three months. However,
under the fourth step of the disability inquiry, a claimant will be found "not
disabled" if he is capable of performing his past relevant work either as he
performed it in the past or as it is generally required by employers in the
national economy. SSR 82-61; see also Martin v. Sullivan, 901 F.2d 650, 653
(8th Cir.1990) ("The two tests [in SSR 82-61] are clearly meant to be
disjunctive. If the claimant is found to satisfy either test, then a finding of not
disabled is appropriate."). There is no dispute that the gate guard position that
Pass held was performed at a sedentary level of exertion, and Pass concedes
that if his position still existed, he would be able to perform the job. Having
found that Pass could perform his job as he did in the past, it is unnecessary to
consult the DOT in order to determine whether Pass would be able to perform
the position of gate guard as it currently exists in the national economy.
III.
35
The Social Security scheme outlines the manner in which former employment
should be considered in making a disability determination. Pass, however, asks
us to inquire, on a case by case basis, into the current relevance of specific jobs
in individual cases. The regulations simply do not call for such an inquiry at the
fourth step of the sequential disability evaluation. As the Sixth Circuit stated in
Garcia, "Congress intended to distinguish sharply between unemployment
compensation and the disability benefits provided by the Act. Congress
manifested this intention by defining 'disability' under the Act as a
predominantly medical determination, as opposed to a vocational one." Garcia,
46 F.3d at 559 (citations omitted). If the analysis of disability under the Social
Security Act is to be changed, it is for Congress or the Social Security
Administration, not the courts, to do so.
Accordingly, the judgment is
36
AFFIRMED.
On March 31, 1995, the Social Security Administration separated from the
Department of Health and Human Services and became an independent agency
pursuant to the Social Security Independence and Program Improvements Act,
Pub.L. No. 103-296, 108 Stat. 1464 (1994). As of that date, Shirley S. Chater,
Commissioner of Social Security, was substituted for Donna E. Shalala,
Secretary of Health and Human Services. Because all of the events relevant to
the instant suit took place prior to the change, we refer to the Secretary
throughout the opinion
2
Pass does not contest the ALJ's finding concerning his ability to perform
sedentary work, or the finding that his past job as a gate guard was performed
at a sedentary level of exertion. He conceded at oral argument that if his former
job as a gate guard were available, he would be able to perform it
It should be noted that even at step five of the inquiry, the regulations make
irrelevant the claimant's actual ability to obtain work. While at step five, the
Secretary must show that work exists in the national economy which the
claimant could perform, the regulations state that "[i]t does not matter whether-(1) Work exists in the immediate area in which you live; (2) A specific job
vacancy exists for you; or (3) You would be hired if you applied for work." 20
C.F.R. Sec. 416.966(a). Commenting on the 1967 amendments to the Social
Security Act, we have stated, "Under the amended Act, the courts are not to be
concerned about the availability of jobs in the community or even their
availability to one with the claimant's impairments, but only with the question
of the claimant's ability to engage in gainful activity." Whiten v. Finch, 437
F.2d 73, 74 (4th Cir.1971) (per curiam)
Both the Sixth Circuit and the Ninth Circuit have upheld the Secretary's
interpretation of the Social Security Act embodied in SSR 82-40. See Garcia,
46 F.3d at 559 ("The determination of disability is predominantly a medical
one, yet the Secretary assigns a role for vocational factors in the fifth and final
stage.... [T]o consider the presence of jobs in the national economy at step four
... would risk transforming a predominantly medical determination into one
with practical availability of employment at its center and would thus undercut
a fundamental policy of the Act."); Quang Van Han v. Bowen, 882 F.2d 1453,
1457 (9th Cir.1989) ("Although the Act requires 'other' work to exist in the
United States, it places no such limitation on 'previous' work; it is therefore
reasonable to infer that the ability to perform previous work renders a claimant
ineligible for benefits whether or not that work exists in the United States.")